Tag: information

The Disuse of Knowledge in the Administrative State

Regulation is not the right tool for intelligently dealing with complexity

Advocates for the administrative state typically promote it on the basis of its great usefulness in contemporary society. Without the expertise that administrators bring to their work, they say, we could not deal with the complexity of the world around us. Although, in the wake of the Supreme Court’s ruling in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, this is no longer part of the rationale for deference to administrative decision-makers in Canadian law, this view is still widely held by administrative theorists in North America. Indeed it is part of the pro-administrativist critique of Vavilov, for example in a post by Mary Liston over at Administrative Law Matters. But this view is fundamentally wrong, even backwards.

A passage from Matthew Lewans’ book Administrative Law and Judicial Deference captures this traditional view nicely. Compared to the past,

we must tackle a broader array of complex social issues―human rights, immigration, national security, climate change, economic policy, occupational health and safety, public access to health care and education, etc―about which there is deep disagreement. And we cannot hope to address these issues intelligently without harnessing the experience, expertise, and efficiency the modern administrative state provides. (187)

Other pro-administrativists, if they have not themselves written such things, would I think wholeheartedly agree with them. To the extent that I specifically criticize Professor Lewans’ argument, below, it is only in a representative capacity.

One thing to note about this passage, and its innumerable equivalents elsewhere, is that it is not supported by any detailed arguments or evidence. The hopelessness of intelligently dealing with the issues that consume contemporary politics without “harnessing the experience, expertise, and efficiency” of the bureaucracy is simply asserted by writers and taken on faith by readers. But I think we need to query these claims before accepting them, and not because I have watched too much Yes, Minister to have much faith in the experience and expertise, let alone the efficiency, of the administrative state.

More fundamentally, the state ― and especially the administrative state ― often is not merely lousy at addressing complexity intelligently, but actively opposed to doing so. The reason for this is that its laws and regulations, to say nothing of its discretionary rulings, serve to eradicate rather than harness the information needed for intelligent behaviour in a complex world. They give both the rulers who wield them and the citizens who clamour for them the illusion of purposive action and control, while actually preventing the operation of the mechanisms that serve to communicate information about the world much more effectively than laws and regulations ever can: prices and markets.

As F.A. Hayek famously pointed out in “The Use of Knowledge in Society“, there is an enormous amount of information that even the best experts armed with the boundless powers of the modern administrative state cannot acquire: information about the circumstances, needs, and desires of individuals and organizations. This information is unlike the scientific, technical knowledge that experts might be able to centralize in the hands of the bureaucracy. In particular, this local knowledge changes much too quickly to be communicated and assimilated by an authority. As Hayek explains, “the economic problem of society” ― that is, the question of how to use the resources available to us most effectively ― “is mainly one of rapid adaptation to changes in the particular circumstances of time and place”. From this,

it would seem to follow that the ultimate decisions must be left to the people who are familiar with these circumstances, who know directly of the relevant changes and of the resources immediately available to meet them. We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders. 

I would add also that, even if a “central board” could acquire information as fast as individuals and businesses, it could not make new rules to reflect this information fast enough, or consistently with the requirements of the Rule of Law, which include the relative stability of the legal framework.

But how do individuals acquire knowledge which, Hayek insists, even a sophisticated bureaucracy cannot gets its hands on? The answer is, through market prices, which reflect aggregate data about the relative scarcity of goods and services available in a given time and place: “Fundamentally, in a system in which the knowledge of the relevant facts is dispersed among many people” ― which is to say, in any society in which there many people, and especially in complex modern societies to which pro-administrativsts such as Professor Lewans refer, “prices can act to coördinate the separate actions of different people in the same way as subjective values help the individual to coördinate the parts of his plan”.

Hayek gives the example of how, if something people need to produce other things other people need becomes more scarce, such as its price goes up

without an order being issued, without more than perhaps a handful of people knowing the cause, tens of thousands of people whose identity could not be ascertained by months of investigation, are made to use the material or its products more sparingly; i.e., they move in the right direction. 

The right direction, that is, from society’s perspective ― the direction of the society’s overall resources being used more effectively where they are most needed. Hayek pointedly describes the functioning of the price mechanism, its ability to economically and quickly communicate information no bureaucracy could gather “by months of investigation” as a “marvel”. He is right.

But, to repeat, the state all too often prevents this marvel from happening. The state outlaws market transactions, and so prevents the communication of information through market prices, left, right, and centre, and interferes with those transactions it doesn’t outlaw. Ronald Reagan summed up the state’s ― and the statists’ ― thinking: “If it Moves, Tax it. If it Keeps Moving, Regulate it. And if it Stops Moving, Subsidize it.” This is not all the state does, of course. The state, if it functions well, also enables markets by keeping peace, protecting property rights, and enforcing contracts. They state may supplement markets by correcting genuine market failures, though these are rather fewer and further between than statists tend to assume. But there’s no denying that much of what the state does, and especially much of what pro-administrativists ― be they on the political left (as most of them have long tended to be) or on the right (as the followers of Adrian Vermeule and other common good will-to-power conservatives, about whom co-blogger Mark Mancini has written here) consists in overriding, displacing, and even criminalizing markets, and so destroying rather than harnessing information. The state not only is stupid; it makes us less intelligent too.

The administrative state, specifically, is especially guilty of this. To quote Professor Lewans once more ― and again, in a representative capacity ―

There are good reasons why legislatures invest administrative officials with decision-making authority. While a legislative assembly might be able to forge sufficient consensus on broadly worded objectives as a platform for  future action, it might reasonably conclude that interpretive disputes regarding those objectives outstrip the capacity of the legislative process. (199)

To be clear, “interpretive disputes” here are disputes about the specification of these “broad objectives”, as well as the means through which the objectives, so defined, are expected to be achieved. What Professor Lewans is saying is that delegation of power to the administration vastly increases the state’s overall ability to regulate ― that is to say, to override, displace, and criminalize markets. Legislatures might never achieve consensus on the detail of a regulation, and so wouldn’t enact any since they need at least a bare-bones consensus to enact law. But thanks to the dark wonders of delegation, the need for consensus is dispensed with, or at least reduced, and more regulation can be enacted. And of course the administrative state is simply bigger than a legislature, so it has more person-hours to expend on producing ever more regulation. The legislative process ― at least, proper legislative process, not what all too often passes for it ― is also time-consuming, while one of the supposed virtues of the administrative state is its flexibility. Faster regulatory change, while it cannot actually be effective enough to substitute or account for the information transmitted through the price system, is more disruptive to markets.

If we actually want to address the issues that confront complex contemporary societies intelligently, the administrative state is not our friend. More often than not, it serves to reinforce the state’s ability, to say nothing of its resolve, to prevent individuals and businesses from acting intelligently in the face of complexity by eliminating or falsifying the information they need to do so. At best, the administrative state then tries to provide a simulacrum of an intelligent response ― as, for example, we ask bureaucrats to puzzle out who may come to our countries to work based on what they, from their cubicles, deem to be market needs, instead of simply opening the borders and letting employers and potential workers make their own arrangements.

Why, then, are people ― and more and more people, too, as the emergence of right-wing pro-administrativsim shows ― so convinced that the administrative state is necessary? Some, alas, are not especially interested in social problems being solved effectively. They even make a virtue of inefficient institutions, slower economic growth, and more coercion. Such feelings may be especially widespread among the common good will-to-power crowd. But more people, I suspect, simply misunderstand the situation. As Hayek pointed out,

those who clamor for “conscious direction” … cannot believe that anything which has evolved without design (and even without our understanding it) should solve problems which we should not be able to solve consciously.

They think that central direction, which only the state, and specifically the administrative state, can provide is necessary. They are mistaken, and in a way that is the sadder because they unwittingly demand the exact opposite of what they actually hope for.

Vote Did You Say?

I am finally beginning my promised series of posts arguing that we do not have a moral duty to vote. In this post, I address arguments in favour of such a duty based on the idea that elections are an information-gathering mechanism. When the information collected through elections is incomplete because some people did not vote, governance will be defective and likely skewed. To avoid these problems, everyone has to vote. Such arguments come in distinct flavours, and I will address two of them specifically, but they also suffer from common problems.

* * *

The first and perhaps more common version of the information-based argument in favour of a duty to vote starts with the premise that by voting we provide those who look at electoral outcomes ― including, first and foremost, the politicians whose jobs depend on them ― with information about our needs and preferences. People who stay home fail to do that, and politicians ignore them in their decision-making as a result. Thus Susan Delacourt has written that “a disengaged public makes it easier to govern — or worse, ignore troublesome issues and constituencies (youth, for instance).” The tendency of some groups not to vote, and the (alleged) tendency of politicians to ignore their (alleged) interests as a result is a particular concern of those who favour this argument.

Jason Brennan has addressed this concern in some detail (he calls it the “demographic argument”) in a post over at Bleeding Heart Libertarians. The most important point he makes there is that “the argument seems to presume that voter[s] vote for their self-interest. But we have overwhelming empirical evidence … that they don’t vote their self-interest. Instead, they vote altruistically, for what they perceive to be in the national interest.” And while the people who do vote are likely enough to be mistaken about what is in the interest of those who don’t, people who tend not to vote and, in particular, “[t]he disadvantaged are much more likely to be mistaken in their beliefs about what it takes to help them,” (emphasis Brennan’s) because their levels of political ignorance are even higher those of the people who do vote. If these people vote out of a sense of duty, politicians might start taking their expressed preferences into account (though as I’ll explain below, that’s doubtful), but that won’t make them better off. A duty to vote will thus not make for better or fairer governance.

* * *

The other version of the information-based argument in favour of a duty to vote gets off to a better start, because it assumes that voters are indeed non-selfish. As Andrew Coyne has put it,

Voting isn’t like buying a soft drink. When you cast your vote, you aren’t just making a choice about you and your needs. You’re helping to make a collective decision about providing for everybody’s needs. The broader the sample of voters, the more representative of everybody it is likely to be — rather like the census — and the greater the combined stock of experiences and insights brought to bear. Conversely, if some “free ride” on others’ willingness to vote, the whole of the community suffers. You owe your fellow citizens your counsel, in other words. You benefit because they vote. You owe them no less in return — just as you owe them your share of the cost of public services.

The trouble with this reasoning (Prof. Brennan has called it the “public good argument”) is that the problem of political ignorance is even more acute for it than for the “demographic” one. If what we care about is collective wisdom, then some people ― especially, as it happens, people who tend not to vote, but also, in reality, a great many of those who do ― would actually help the community not by voting, but by staying as far away from the polling stations as they can.

Now, people who find this argument attractive will often say that the whole point of a duty to vote is that it will get people to become more engaged with and less ignorant about politics. Trouble is, as Prof. Brennan points out that, that “there are a bunch of empirical studies on this looking at various natural experiments, and the answer is no, compulsory voting doesn’t cause uninformed voters to become any better informed.” And it’s pretty obvious why this should be the case. Acquiring information relevant to voting is difficult. There is a lot to learn, both about the world and about what the politicians plan on doing to it. Learning takes time, energy, and ― a non-negligible point ― a willingness to confront “inconvenient truths” that make you uncomfortable with your prior beliefs. As Ilya Somin pointed out, it is “rational for most voters to stay ignorant, given the low chance that their knowledge will make a difference.” It is telling, I think that the defenders of a duty to vote mostly just say that it will spontaneously cause people to become better informed and more engaged ― not that there is in fact a duty to do so. They realize that, unlike the duty to vote, a duty to become a competent citizen is a very onerous one. (Of course, it is also possible to be an informed and engaged citizen without voting. I’ll develop this thought further in a separate post.)

* * *

The arguments and counter-arguments I have canvassed so far all presume that voting is a reasonably effective information-gathering mechanism. To think that voting tells politicians what the voters want or that it is a way of aggregating their wisdom about how best to run government, you need to think that it produces a relatively intelligible message, and also that politicians are able and willing to actually understand and act on this message. But these assumptions are unfounded.

Voting in an election is actually an incredibly bad way of sending any sort of message to anyone. It is a choice between, realistically, two or three options; perhaps a few more, depending on the voting system and the circumstances of each election, if you pretend that every candidate has a chance. And each of these few choices ― certainly each of the ones that have any chance of winning ― comes with a full panoply of policies (however vague) on all sorts of topics (however trivial), boasts (however exaggerated) about its leader’s character , and insults (however unfair) for its opponents. A vote can be based on any of these policies, boasts, or insults, singly or in combination. Or it can be based on whose name came first on the ballot, or some other utterly irrelevant consideration.

So how do we know what message a given set of electoral outcomes conveys? If, say, the Conservatives win on October 19, will it be because they hate the niqab, because Stephen Harper is the devil we know, or because Justin Trudeau is just not ready? That’s a trick question: nobody will know the answer. As Hans Noel explains in a very useful essay called “Ten Things Political Scientists Know that You Don’t,” “[t]hese narratives are created after the fact by people who want you to think one thing or another.” Even if the adage vox populi vox dei is true, an electoral outcome is no more than a Pythia’s mumbling ― to be interpreted by self-interested priests.

Things get even more muddled once we account for the possibility that people who show up at the polling station out of a sense of duty will not actually vote for anyone at all. Canadian advocates of mandatory voting tend to favour the inclusion of a “none of the above” option on the ballot. And those who believe that there is a duty to vote will typically say, like Mr. Coyne, that “[y]ou could … decline the ballot, or spoil it, or otherwise register your dissatisfaction with the choices on offer” ― you just need to show up. Needless to say, if you are voting “none of the above” or, a fortiori, if you are spoiling your ballot, you are not sending much of a message, whether about your own interests or what you think the country’s interests are. (By the way, Australia, a country from which the proponents of mandatory voting often say they draw their inspiration, does not have a “none of the above” option, and actually forces voters to rank all the candidates to cast a valid ballot. If both a Communist and a Marxist-Leninist are running in your riding, you need to say which you like more. Although there no Communists and no Marxists-Leninists in Oz. Their parties are actually much crazier than that.)

If you think that I just dislike democracy, or our version of it, you are mistaken. I share Churchill’s opinion that democracy is an imperfect political system, and indeed the worst one ― except all the others. I appreciate the blessings of political choice ― such as they are. I just don’t think that an electoral system’s purpose is to send any deep messages to the politicians or to anyone else. It’s to provide a mechanism for choosing people who will make decisions and, importantly, to ensure that the people in charge know that they are replaceable on relatively short notice, which tends to keep them somewhat honest. Our political system does that reasonably well. Pointing out that it’s useless at something it’s not meant to do is not a criticism at all.

There actually exists a much better mechanism for aggregating people’s preferences and putting their knowledge in common. Unfortunately, politicians tend to impede rather than support its functioning, and do their utmost to ignore its lessons even when these are clear. It’s called the market. (Nobody thinks, however, that a person is “free riding” on the market’s information-gathering by refusing to participate in it and thus contribute his or her “insights” about what the prices in that market should be.) Mr. Coyne points out that “[v]oting isn’t like buying a soft drink.” That’s quite true, but not in the way Mr. Coyne suggests.

As prof. Somin often says (sorry, I’m too lazy to track down a specific post for reference), when people make market decisions, they have a strong incentive to become informed about the choices available and their consequences, because the decision they make will affect them a great deal. Voters lack this incentive, because the chance of a single vote affecting anything is very small. (That is true, by the way, under any voting system ― not just first-past-the-post.)

Moreover, the market allows for much more fine-grained decision-making than do elections. Getting a can of Coke in preference to a Pepsi doesn’t commit you to, say, buying an iPhone instead of a Samsung, and leasing a Ford car instead of just taking the bus. But voting does ― you cannot vote for, say, the Conservative policy on health transfers, the NDP policy on anti-terrorism legislation, the Liberal policy on marijuana, and none-of-the-above on kowtowing to the dairy cartel. Indeed, voting for a party is the equivalent of committing to Coke, Apple, and Ford for the next four years.

Again, that’s not to say that we should scrap voting altogether. The market isn’t the best mechanism for making every decision. But so far as information-gathering is concerned, it is greatly superior to voting. If we really cared about having as much information as possible about people’s preferences, and about maximizing the use of their individual knowledge for the public good, our governments would regulate less, and let the markets decide more. Instead, even when the market sends very clear signals, such as that many people prefer Uber to the taxi cartels, politicians turn a blind eye to these signals, unless they actually try to stamp them out by regulating even more.  Politicians, I conclude, are not actually interested in information about what people want. They will say otherwise, of course, but actions speak louder than words.

* * *

Making the case for a duty to vote on supposed information-gathering properties on the electoral process is a perilous exercise, because elections are simply not are intended to aggregate information. They serve to choose Parliaments and, indirectly, governments. A vote does not communicate much of a message either about a person’s own needs and preferences or about his or her views as to how the country ought to be governed. When you vote, nobody can tell what it is that you are trying to say. Besides, when people make their views clear in the marketplace, politicians tend to simply ignore them, or even try to eliminate the market’s information-gathering abilities. The information-based case for a duty to vote is not a persuasive one.

But, you might say, it’s not the real case for a duty to vote. Please stay tuned. I’ll address other arguments over the next few weeks. And if you’re worried that I might not address you personal favourite, please get in touch, and tell me about it!

Forgotten Balance

Over at Concurring Opinions, Frank Pasquale has a post defending the EU Court of Justice’s decision that enshrined the “right to be forgotten” in European law. Arguing against “a reflexively rejectionist position” which he sees emerging among some American commentators, prof. Pasquale writes that it fails to “recognize the power of certain dominant firms to shape impressions of individuals,” and might lead, by design or otherwise, to an undermining even of the (limited) protections for privacy and reputation which American law recognizes. For my part, I think that prof. Pasquale sets up something of a false dichotomy. There are other options than a free-for-all in which any disclosure of any information is permissible and acceptance of the “right to be forgotten.”

Prof. Pasquale worries about the possibility that people’s medical records or intimate photos will be stolen and posted online. If that happens, he asks,

[a]re the critics of the [right to be forgotten] really willing to just shrug and say, “Well, they’re true facts and the later-publishing websites weren’t in on the hack, so leave them up”?

American law, he explains, provides for some penalties against those who publish purely private information. “Perhaps,” he says, “critics of the [right to be forgotten] want to sweep away these penalties, too. But if they succeed, there will be real human costs.” The right to be forgotten, he concludes, is essential to “guaranteeing a digital future where our reputations aren’t at the mercy of malicious hackers and careless search engines.”

I’m unconvinced. Prof. Pasquale’s concerns are serious, but the right to be forgotten is at once insufficient and excessive to address them.

The information disclosure of which rightly worries prof. Pasquale is intrinsically private. Companies which compile it or to which people entrust it for storage or safekeeping should not disclose it without the consent of the individuals concerned; those who receive such information from people not authorized to communicate it have no business publishing it. The publication of such information is a harm which the law should sanction. But the “right to be forgotten,” at least as articulated by the EU Court of Justice, is at best an indirect protection against this harm. As its name suggests, it is not a right against having private information about you published in the first place. It is not even a right to have private information removed from the websites that originally published it, but only to have links to that information removed from search results. Of course it will make the information that much more difficult to find. More difficult, but not impossible. Something like a (much narrower, as I’ll presently explain) version of the right to be forgotten might be useful to protect us from disclosure of private information, but only as a complement, not an alternative, to going after the actual publishers of such information.

At the same time, the “right to be forgotten” potentially extends to all sorts of information that is not necessarily intrinsically private in the way medical records or intimate pictures are. For instance, back in August, the BBC explained that many of the 12 pages from its website that had been removed from Google’s search results up to that point, concerned court cases ― including those where a defendant had been convicted of a serious crime. (Now, I’ve already written about the difficulties that being mentioned in a court decision can create, and wondered whether anonymizing (at least some) of them would not be better. But, for now at least, the prevailing view is that court cases, including the parties’ names, are generally public matters.) In such cases, there can surely be no question of forcing the actual publishers of the stories to remove them, and the “right to be forgotten” only means, as I recently explained here, that ordinary people, those who do not have much time and/or money for research, will not be able to find them. Even if in some cases a version of the “right to be forgotten” would help us protect what most people will agree is private information, the current European version of this “right” is vastly overbroad.”

So it seems to me that one can easily be against the recognition of a “right to be forgotten” in the shape in which the EU Court of Justice created it, and in favour of protecting people from “malicious hackers and careless search engines” disclosing intrinsically private information about them. It should be possible to craft more narrowly-tailored and more effective regulation, directed in the first instance against the publication of such information and, as a secondary measure, allowing links to infringing information to also be removed. In the inevitable conflict between privacy and freedom of expression, we shouldn’t forget nuance and balance.

 

The Power of Google

I seem never to have blogged about the “right to be forgotten” enshrined into European law by the European Court of Justice (ECJ) in a judgment issued in May. An interesting recent blog post by Paul Bernal allows me to do offer a few random observations on the matter. Better late than never, right?

In a nutshell, the “right to be forgotten” allows a person to request a search provider (for example, Google) to remove links to “inadequate, irrelevant or excessive” ― even if factually correct ― information about that person for search results. If the search provider refuses, the person can ask national privacy authorities to compel the removal. Google is most dissatisfied with being asked to handle thousands of such requests and to weigh the privacy interests of those who make them against the public interest in access to information (as well the freedom of expression of those providing the information in the first instance). It says that it cannot perform this balancing act, and indeed its first stabs at it have sometimes been very clumsy ― so much so that, as prof. Bernal explains, people have suspected it of doing a deliberately poor job so as to discredit the whole concept of the right to be forgotten.

Google has responded by setting up a group of experts ― ostensibly to advise on implementing the right to be forgotten but really, prof. Bernal implies, to make sure that the conversation about it happens on its own terms. And that, according to prof. Bernal, includes not paying attention to “the power of Google” ―its “[p]ower over what is found – and not found” about anyone, reflected by the way we use the phrase “to google someone”; its agenda-setting power; and its ability to influence not only journalists and experts, but also policy-makers. Prof. Bernal points out that Google creates (and tweaks) the algorithms which determine what results appear and in what order when a search is run, and that it has not always upheld freedom of expression at the expense of all other values. Google systematically removes links to websites due to copyright-infringement, as well as for a variety of other reasons. Its right to be forgotten tantrum should be viewed in that context, says prof. Bernal; we mustn’t forget Google power, and the variety of ways in which it exercises it.

Fair enough. I have myself written (notably here and here) about Google’s dual, and conflicted, role as at once a speaker and a censor. Google wants to be treated as a speaker ― and granted freedom of speech ― in designing its search algorithms. It also takes on a role of regulator or censor, whether on behalf of its own values and priorities (commercial or otherwise), those of its clients or partners, or those of governments. And there is a standing danger that Google will be tempted to play its role as regulator and censor of the speech of others in such a way as to gain more leeway (especially from governments) when it comes to is own.

Yet to my mind, this inherent conflict is, if anything, more reason to believe that making Google into an arbiter of private and public interests is a bad idea. The ECJ offloads the responsibility of balancing individual privacy rights and public interest in access to information on Google and its competitors, at least in the first instance, but why would we want to give such a responsibility to companies that have such a twisted set of incentives? Prof. Bernal is right that Google is not an unconditional defender of freedom of expression ― but instead of concluding that it might as well compromise it some more, this time in the name of privacy, isn’t that a reason for thinking that we cannot rely on it to strike the right balance between the rights and interests implicated by the right to be forgotten?

Another thing that we might want to keep in mind when we think of “the power of Google” in the context of the right to be forgotten, is the nature of that power. It is not, like the power of the state, a coercive one. In a sense, Google has a great deal of market power, but the users of its search service hardly feel it as “power.” We know that we have easily accessible alternatives to Google (notably, Microsoft’s Bing, and Yahoo!). We just don’t feel (for the most part) like using them ― for whatever reason, but not because anybody forces us to. And I think it matters that the power of Google is not a collective power of people acting together (like the power of the state) but, if that’s the right word, a composite power ― the sum of a great number of individual actions more or less insignificant by themselves. Despite the fact that, as prof. Bernal rightly points out, Google’s algorithms are not somehow natural or neutral, it is, in a real sense a conduit for the disparate actions and interests of isolated individuals, rather than a vehicle for the expression of their collective will. To me, that makes the power of Google, at least this aspect of it, a rather less threatening one.

It is also a democratizing one. By making it easier to find information about someone, it makes such research accessible not only to those who have a staff of researchers (or police officers, or intelligence agents!) at their disposal, but to ordinary citizens. And this is precisely what worries the advocates of the right to be forgotten. It is indeed a curious right, one that apparently only exists online. Nobody says that libraries or archives should purge information about people once it becomes “irrelevant or excessive.” (Indeed, at least for now, the right to be forgotten does not even require substantive information to be taken down from the Internet, or even links to such information to be removed from ordinary websites. They must, it seems, only be expunged from search results.) So someone with a lot of time and/or money on his or her hands can still find that information. It’s those without resources to expend on an extended investigation who must be deprived of it. That too, I think, is something to keep in mind when thinking about the right to be forgotten.

This all might not amount to very much. Insofar as prof. Bernal calls for nuance and a fuller appreciation of the facts in thinking about the right to be forgotten and Google’s role in implementing it, I second him. If have a distinct message of my own, it is probably that an actor having “power” is not, without more, a reason for pinning any particular responsibility on it. We should be wary of power, whatever its form, but it doesn’t follow that we should burden anyone powerful in whatever way we can think of. If anything, power should be checked and balanced ― balanced, that is, with countervailing powers, not with responsibilities that can, in the hands of the powerful, become excuses for further self-aggrandizement more than limits on their action.

H/t: Yves Faguy

Why?

A friend recently challenged my habitual skepticism about the government: “Why is it,” he asked, “that if something is a public service, we always question whether it should be? Isn’t that just ideology?” It’s a good question, and since the views that underpin it are widely held, it is worth answering here. Note that I will be focusing only on government supply of goods and services, not arguing for libertarianism, still less for anarchy. Furthermore, I am only arguing for a prima facie skepticism, which can be overcome in specific cases. I will say more on that at the end. And, before I begin, two disclaimers. First, none of what follows will be original. It’s just important stuff that bears repetition. And second, this will be quite long. My apologies.

Of course the most familiar reason for being skeptical about anything the government does is ideological. Government action often involves coercion. This might be less obvious with public services, which citizens are not always forced to use. But they are forced to use some, and most others are funded at least in part by coercively-levied taxes. If we value freedom at all, coercion is presumptively wrong, and must be justified. But people might (1) not value freedom, or (2) not think economic freedom (that is, freedom of contract and property rights), which is mostly at stake when government expands to provide goods and services, is valuable, or (3) think that while economic freedom is of some value, it is easily outweighed by other considerations. Those are deep philosophical commitments, and I will avoid arguing about them here, because I think that the skeptical case can be made out without challenging them.

What drives the non-ideological version of the skeptical case is a concern not with liberty but with efficiency. Now, efficiency is often thought of as an ideological dirty word. It’s not. Efficiency is simply the fact of using fewer scarce resources (whether labour, capital, or natural resources) to achieve a given objective. I fail to see why anyone, whatever one’s deep philosophical commitments, would be opposed to that.

There are three main reasons why a concern with efficiency supports prima facie skepticism with government delivery of goods and services, which I will discuss in order of, I think, increasing subtlety.

The first of these reasons comes from “public choice” economics, which analyses the behaviour of the government on the assumption that the people who serve in it―whether as legislators or as bureaucrats―are self-interested agents concerned with their own welfare. Perhaps this assumption can be taken too far―I’m willing to believe that government officials are partly motivated by what they see as the public good, and not only by self-interest. Still, it would be naïve to assume that they are entirely selfless and do not care about things like financial rewards, leisure, and re-election in the case of legislators. Public choice theory warns us that government officials are likely to want to give out favours to their friends, campaign contributors, or pet causes. And the provision of goods and services by the government is a great vehicle for that. A public investment fund can be instructed to protect a favoured corporation from a hostile take-over, as the Caisse de dépôt et placement du Québec regularly is; a public company can be told to give jobs, or to provide cheap goods for the supporters of the politicians in power. Of course, allocation of resources in the basis of politicians or bureaucrats’ self-interests is seldom going to be efficient.

The second reason to question whether the government should provide goods and services comes from F.A. Hayek’s insight about the limitations imposed on government planners by their lack of information. Even if public choice theorists were wrong and government officials were invariably concerned with the public good and nothing else, they would be hampered in its pursuit by their inability to get a hold of all the information about people’s needs and wants. That information comes from price fluctuations in a free market, with increasing prices signalling increased demand for a good or service, and/or reflecting the increased scarcity of the resources necessary to produce it. When the price mechanism is replaced by government control, with prices of goods and services produced by the government determined (in some considerable part) by political considerations rather than by the cost of and demand for these goods and services, the allocation of resources to the production of these goods and services need not bear any relationship to the actual demand for them and to possibility that these resources would be better expended on something else.

The third, related, reason for skepticism about the government as a supplier of goods and services is the difficulty to know whether it is supplying them efficiently. In a free market, an inefficient producer (one that is, for example, paying two workers for doing a job that one could do, or buying supplies for an above-market price because of its owner’s relationship with the supplier, etc.) will be seen as charging more for its products than its competitors. It will have to mend its ways or to fail. But when that producer is a monopolist, as the government often is for the goods and services it provides, it is much more difficult to tell whether it is inefficient. And the case of the government is worse than that of a private monopolist. For one thing, it is not just the monopolist’s shareholders and its customers, but all the taxpayers who are paying for its inefficiency. For another, a private monopolist’s inefficiency invites competitors to enter the market and undercut it. But the government usually can prohibit would-be competitors from doing so, even if there are any, which is not always the case.

Now these claims are somewhat overstated. Democracy and other limitations on governmental power go some way towards correcting at least the extremes of self-interested behaviour by public officials. And although we usually cannot rely on the market to prevent the government from being inefficient, free and democratic polities have other mechanisms to compensate for this. Democracy makes it possible to, in effect, change (part of) the management of the government-supplier if the incumbent managers are inefficient. Public institutions such as auditors-general are empowered to investigate and maybe try to eliminate government inefficiencies. And private actors, especially journalists, can do the same thing. But these mechanisms are imperfect. Elections are fought over only a handful of issues, not all of them having to do with the incumbent officials’ public-spiritedness and managerial competence, and against a background of massive political ignorance. Many bureaucrats are subject to very limited and indirect electoral control anyway. Self-interest can move politicians and bureaucrats to impede the work of public and private investigators. And so on.

So we have good reason to be skeptical of governmental provision of goods and services. But skepticism should not make us oppose it in every case. The government is likely enough to do a bad job of providing goods and services, but the market sometimes does an even worse one. This is the case of “public goods,” that is goods or services the producers of which cannot, for any of a number of reasons, charge those who benefit from them anything like a price that would make their production worthwhile (and not to be confused with “the public good”). (For more on that, see this entry in Larry Solum’s Legal Theory Lexicon.) Still, the questions whether a given good or service is subject to such a “market failure,” and whether, if so, the market failure is greater than the “government failure” resulting from its production by the government, are always worth asking.

As I said in the beginning of this post, all that does not amount to a libertarian manifesto. Even if we are skeptical about the government providing goods and services, we might decide that the government (that is, the taxpayers) ought to pay, or help pay, for people to acquire some goods and services on the free market. That’s how social security works―instead of the government producing food and feeding the unemployed, the elderly, or the infirm, the government gives them money so that they can feed themselves. And of course even if we are skeptical about the government as a supplier of goods and services, we have good reasons to want the government to engage in (some) regulation to prevent some negative effects people’s economic activity might have on third parties, air pollution being a classic example.

Despite all these qualifications, this might not convince those who think that economics is incipiently and terminally ideological. To them, I can only quote Hayek:

It may sound noble to say, ‘Damn economics, let us build up a decent world’―but it is, in fact, merely irresponsible.